May 14, 2006

Self-publishing your music - how to do it

I have a number of music business books that describe the self-publishing process, as well as trying to answer the "should I go with ASCAP or BMI?" question. I found a number of factual problems with the books when I actually did the research work myself, and the books consistently say "ASCAP and BMI are about equivalent" which I think is completely untrue: BMI's publishing agreement is *much* worse.

Here is a summary of my opinions on self publishing your music (if you're a songwriter)

- go with ASCAP. It's free, and their agreement is much less evil than BMI's.

- you don't need to incorporate, don't believe the music business books, you just need to pick a name for your publisher, which is your "doing business as" name. You'll get checks to that name, so you want to choose a publishing company name such as "John Buckman Publishing" (ie, your name + publishing) so that the bank lets you cash the checks you receive to that name.

- the musician should be signed up with the same organization as the publisher, and since the publishing agreement is much better at ASCAP, I'd recommend both musician and publisher sign with ASCAP. If the musician is already on BMI, they can leave and transfer to ASCAP. However, I have no knowledge that you'll see more money from one or the other.

- both ASCAP and BMI can collect "DART" royalties for you, which are various digital audio royalties, and both have a one year cancellation option, so it's a good idea to check that option in the signup form, and I couldn't see much difference in the ASCAP vs BMI agreements for this.

ASCAP vs BMI? I thought they were the same, then I looked at the agreements. The big differences are:

- BMI wants $150 for you to be a publisher. ASCAP is free. BMI wants even more if you're a registered company.

- The BMI agreement is for 5 years, automatically renewing in 5 year terms forever, and you can only cancel in a specific window a few months before the 5 year term expires. The ASCAP deal, on the other hand, can be cancelled any year, if you notify them between 9 and 6 months before the anniversary of when you signed with them.

- The ASCAP agreement asks for less rights than the BMI agreement does. The BMI agreement, in my opinion, goes way overboard in the rights they get.

Here are some examples. The BMI agreement:

Whoa! In case you missed it, you "sell, assign and transfer" (that means you lose these rights completely) *all* the rights to perform or license the work to be performed, anywhere on the planet. This means you cannot sign up with a foreign publishing company as well, if you go with BMI.

Now, because both ASCAP and BMI were sued by the government and they are forced to let musicians do their own licenses, BMI grants you back a license to do this (since you just gave them all your other rights)

whereas ASCAP just asks for the rights they need, which is much friendlier than BMI's agreement, which asks for all your rights and gives you permission to do what the government forced them to.

Note that under BMI you are required to notify them of any side agreements you do, since BMI now owns your rights, whereas under ASCAP you do not need to, since ASCAP has a non-exclusive right to start with:

this means that if you're a musician and self-published under BMI, and you're signed to Magnatune, you need to send BMI a copy of your signed Magnatune agreement within 10 days of signing with Magnatune. No such requirement exists with ASCAP. As I understand this, if you assign a creative commons license to your music, and your publisher is signed with BMI, you also need to send the Creative Commons license to BMI, as that's also a performance license and BMI commits you to telling them of it within 10 days.

Compare the all-rights-go-to-BMI approach to the ASCAP agreement:

ASCAP asks for a (non-exclusive) right to license your music, and the right to sue people to enforce your copyright. That's all a collection society needs to do its business, it doesn't need to own the rights as BMI does. That strikes me as much more reasonable.

Next BMI, gets all kinds of rights unrelated to their central mission of collecting performance royalties:

This means they have the right to make CDs of your music, as well as the right to license that right to anyone else. The exceptions are: as long as it's not to sell the CDs to the public, to sync the music with film or TV, or distribute via cable. Obviously, those seem like the main reasons you'd want to make CDs, but I can think of lots of other reasons, for example, they can make thousands of your CDs and give them away for free, or license them to a car company who would include the CD in their cars (or hotel CD collections, libraries, etc... anything that's not "to the public")

Clause C. gives them the right to adapt or arrange the work, however they want (think "techno remix") for performance use. I don't see ASCAP getting this right in their agreement.

I will stop criticizing the BMI agreement after this last point:

this says that BMI is your lawyer and can act on your behalf in any way they see fit, and are under no obligation to act in ways that you direct them to. Compare that to the ASCAP agreement, where they only get the right to sue to protect your copyright.

I could go on and on about this BMI agreement, it's really that bad.

- Perhaps it's silly, but the BMI agreement is an ancient scan of a typed agreement, with two "page intentionally left blank", and you can't search the text, because it's all graphics. The ASCAP agreement is a word processing document, can be searched and is clean and new. BMI's agreement is 36 pages, vs ASCAP's 12. The BMI document has a bad attitude from the very start, with a huge-font disclaimer as the cover page page that you should expect a 6 to 9 month delay in getting paid, longer if it's foreign performance money. I'm sure ASCAP has the same issue with delays, but the whole look and tone of the BMI agreement is off-putting, with the bad-quality scan, don't-bug-us-about-delays, nasty rights grants and bad print quality.

- Also perhaps silly, but the BMI agreement has several lobbyist-smelling exceptions to the agreement, such as for Opera and Ballet, next to some particularly nasty looking legalese. This makes me think that this legalese is bad news, and that some powerful lobbies got them removed just for their case.

For example:

- I have no affiliation with ASCAP or BMI. My wife is an ASCAP member, and she's never received a check over $10 from them, so I was in no way previously biased toward ASCAP (biased against them, truth to tell, due to the paltry checks). But, this is how I interpret what I see...

The usual disclaimer: I'm no lawyer, this is not legal advice, and you should consult a lawyer before doing anything, such as using any of this advice.

Comments

The ASCAP music publisher agreement states that the songs have to be copyrighted. Have you found that a Creative Commons label serves as a copyright, or do they make requirements on having government copyrights filed?
Also, re: the name checks are written to, the ASCAP agreement has a box to check and a line to fill in that allows you to specify the name the check should be written to if you'd like to have a publishing company name that's different from that.
Thanks for a great article - I hope you read old comments!
-bill (Heuristics Inc.)

The BMI "work registration form", which you can find at http://www.bmi.com/songwriter/resources/forms/work-reg-e.pdf explicitly allows for works with no publisher at all, in which case the publisher's share is divided among the writers. So the premise of your preference for ASCAP over BMI has no validity.

I do not work for BMI, but I do have a piece registered with them and this clause is one of the things that swayed me in my choice of PRO.

opinions of small-town bar owner about to file bankruptcy because of BMI. In my opinion, there's really no reason for any songwriter to sign with either of these publishing corporations unless your songs will be played on the radio. you see, what most musicians dont know is that only the artists currently being played on the radio will be receiving any royalties from these "soprano"-esque (& i'm mainly talking about BMI here) organizations. and most songwriters are unaware of the shady business practices being conducted on "their" behalf when it comes to the bar/restaurant industry. they (BMI) harass, threaten, send in spies,(we're talkin border-line extortion/racketeering here) to get you to pay outrageous annual licensing fees for offering live entertainment (bands playing cover tunes or karaoke). We would've been more than happy to pay reasonable annual dues. but, the amount they "billed" us for was laughable! (based on CAPACITY, not annual sales) we NEVER have anywhere NEAR the amount of people our capacity allows, & already pay a license for the jukebox ($800/year) for a small-town bar that only brings in avg. $100/night mon-thur & $400 on fri or sat nite, that's a lot of dough. they wanted us to pay for an additional license ($1200) for our weekly karaoke and 2 times/month live band performances, but we called our attny general's office & they were unaware of any LAW that required us to do so... so we blew it off. BMI was ruthless in its taticts. they harrassed employees, sent threatening mail, and sent in spies to document copywrite infringements of "their" artists' music. (14 violations) then hit us with a lawsuit stating they have the right to collect up to $1.5 million from us. we are a small-time business in a small town barely able to pay our payroll taxes each month, let alone an amount as enormous as that. we'll probably have to sell the business we've been building for 7 years, be forced to file bankruptcy, and face the possibility of losing our home &/or all assets. meanwhile, we've had to stop karaoke & live band performances (the only potentially busy nites for the bar); and the only time the bar has more than 20 people in it. so, it's looking pretty bad for us. what really pisses me off though, as shady as their collection tatics are, the distribution policies of these funds to "their" artists are even worse! they only pay out a questionable amount & only to artists with songs in rotation on a small sampling (20%) of radio stations nation-wide. so, even if a band does play a cover of gary stewart's "empty glass" or david allen coe's "you dont have to call me darlin"... neither of them will be seeing any royalties cause their songs arent being played on the radio anymore. ashlee simpson, kelly clarkson, & kenny chesney will be receiving a check. not the artists whose songs are being performed. basically, it's a bunch of b.s. cuz a karaoke or live performance of a song might even help the sales of that record. & i'm pretty sure that most musicians wouldnt want businesses like ours going under so that the multi-million dollar artists whose songs are currently on the radio can have bigger checks and BMI can afford to pay the $200,000.00 a month lease for their corporate offices in NYC. but that's just my opinion.

I used to sing once I sung at TCL when it was open. But based over an illness I'm not able to sing anymore. My illness grew worse over time. Now the only time I sing is like around the house. I do write songs and I have a website if you would like to check the site out. I try to get in contact with all singers and songwriters-publishers and producers so on. If you have any questions let me know.

I have a website on the blog that displays the songs I have written. I also have another website that a friend displays the songs I've written and that he had sung. On this website of his that displays these songs. Is on www.monk-music.com that you can be connected to both of the sites that displays all of these songs.

"This means they have the right to make CDs of your music, as well as the right to license that right to anyone else. The exceptions are: as long as it's not to sell the CDs to the public, to sync the music with film or TV, or distribute via cable. Obviously, those seem like the main reasons you'd want to make CDs, but I can think of lots of other reasons, for example, they can make thousands of your CDs and give them away for free, or license them to a car company who would include the CD in their cars (or hotel CD collections, libraries, etc... anything that's not "to the public")"

BMI is not manufacturing and licensing CD's to hotels. Tons of small publishers would protest. It has nothing to do with the business they're in. They aren't doing it, they won't do it.

"Clause C. gives them the right to adapt or arrange the work, however they want (think "techno remix") for performance use. I don't see ASCAP getting this right in their agreement."

Of course ASCAP gets this right. What about when a radio station adds bleeps to a song, or slows it down near a break, or does any number of hip-hop style things to it, adds delay, whatever.

Let me make a few arguments in favor of BMI. First, a while ago I wanted to license some music to a store for in-store play. I spoke with both P.R.O's, neither of which had a problem provided the licenses were on store premises. More importantly, BMI's customer service is way better than ASCAP's. ASCAP will put you through the most ridiculous phone tree, and you'll end up speaking to someone who is an idiot. BMI is completely different, I've gotten emails back, great answers, and it takes a lot less time.

I agree that BMI's tactics are crappy re: shakedowns of bar owners, but ASCAP does the same thing. It's something that sucks about both of them.

You made some other points about contract terms that I actually want to look into (for my own benefit), including the 5-year term, etc., but I the choice between the two is not so cut and dry.

This is to the comment over what I have posted. I'm not sure over how the BMI and ASCAP works or even the SESAC. I really wished I knew though. Because this can help me over how one's get reconition over their material. I have been trying to get in contact for reconition over my work. I would think they would work the same way. But so far I have noticed there are people that can be under the same name in any business industry. And be out there for the wrong reasons-only for money. Instead of helping people out for their talent. And others don't realize this is alot of work!! I can understand how it can be considered a job. It is work!! I have worked with companies that made promises and are under names that are familiar in the music industry. But I feel this is only label and not the real thing. And this makes the real business look bad. The one's that are under the same name and aren't the real thing. It can happen in the acting business or modeling business also. And I feel the same way over that. It doesn't matter what business it can pertain too!!!! And because of this people have falling victims to fraud!!!!I have a friend that worked with BMI. And this company made him all kinds of promises. And that's all it was were broken promises. They were sure enough there to take his money though. And he's a very talented artist. I hope they realize that when they make promises that they don't keep. This is illegal-false advertisement. And because of this there are others that can be harmed because these people are only trying to reach for their dreams. And these companies are there just for their banking accounts. Falling victims to false advertisements!!!!Because there are so many as I call it like alligators (gators) out there ready to swallow you up!!!! By using your dream to get to your money or for them to place harm upon others. And one's end up loosing their life because of false dreams!!!!So I'm not sure exactly why some of these business do things differently. I do wish I knew though. A person could sure live out their dream when they know what they are up against.

Bootsie I didn't realize until now that jon had made a comment to your question. I hope this helps. I know it does me. Because I am still learning about how BMI and ASCAP or even SESAC works. I know when I first started doing more songwriting Diane Warren is the one that recommended me to look up information with BMI and ASCAP. Which has helped me to learn who does the most connection. Thank you Jon!

Okay, well, I am a SOCAN member in Canada and a BMI affiliate for a synchronization of my music on an American prime-time TV show. I have NEVER had a problem with BMI, and have heard from my new co-writing partner that it was ASCAP who charged, not BMI...hence, she became a BMI member. So...contradictions here.

Wait a minute - i thought the title of this whole segment was how to publish your music, not, who is better BMI or ASCAP -
OK - If your music 'somehow'gets (duhh ..licensing agreements) placed on the radio,placed in a movie, on TV, in a commercial - UNLESS you are a member of a society (BMI -ASCAP)whose job it is to hunt down the people who use your music, - 'somebody else' will register the song as the publisher, and will be making royalties, when it airs - Why havent you talked about this?? - I belong to BMI - yes they charge 150.00 to be listed - you get what you pay for- the fact of the matter is if you dont pay to be a publisher - you, by default, get youre publishing amount, being listed as the writer - Yes ture fact - i dont know if thats the case with ASCAP-what the 150.00 gets you is 'European coverage' - yes, BMI is way better at recovering American's royalties abroad -
True fact - hey -you get what you pay for..
Im not a spokesman by any means - ive placed a 'handful of of song placements on American TV 1 Austrian commercial- and a couple of songs that air in South America to Estonia - no problems with BMI - its all itemized on my check stub
Hope this was helpful-

Wow. what a world of commentary! Somewhat helpful, and somewhat confusing all at the same time. I've been a registered BMI songwriter for 9 years, and now have had my own publishing company registered with BMI and no problems. They've been really great with taking calls, and scheduling me for in person meetings, offering career advice, etc. I have often wondered myself if ASCAP was more helpful to young artists, etc. Our first EP has airplay around the globe, earned many positive reviews and non- exclusive publishing offers. Now, with a debut album on the way, we wish to do this right. I would like to team up with a more experienced publisher or agent who will provide solid advice/ mentorship in trade for insider contacts / connections in todays music market. As an independent artist, I've learned to do my homework, becoming my own songplugger, label, etc. If there are any solid publishing organizations that someone could recommend, please let me know. From what I understand in this business so far, the thing I should do is hire someone to handle administration (Paperwork). This is a very fun and competetive business! I would enjoy trading notes, and networking with a like-minded artist to grow and learn in a positive environment.

I realize this is 5 years old but I just wanted to say...this didn't really teach me how to self-publishing...just told me that BMI sucks more than ASCAP...which is cool and stuff but the title doesn't match the article. That is all, thanks.

This is good info, but I take it as one persons opinion. The BMI V.S. ASCAP debate has been going on for a long time. Everyone has an opinion on this. My advise is to do your own research and decide for yourself. Call BMI and ASCAP and let them answer your questions. Read reviews from publishers and songwriters. Scour their websites. Then make a list of pros and cons for each and then make a decision. While other peoples opinions are valuable, opinions vary. One person may have had a bad experience with ASCAP, while another person has had a bad experience with BMI. Proper research will give you peace of mind. Good luck!

A while back, when I knew nothing about anything pertaining to publishing and/or PRO's, I registered with BMI and ASCAP at the same time. I was young and didn't read either agreement and have missed both termination windows. I wish to remain with ASCAP, but BMI's contract renews automatically every two years. Is my only option to wait until the next termination window and terminate my contract with BMI? Or is either contract void for registering with both. I don't have a single work registered, so there is no money involved on either side, but I've always been confused at the best approach to solving this situation.